Tom Barrack Suggests He Can’t Be Prosecuted Because It Didn’t Happen Early Enough To Be Obstructed

Tom Barrack has filed a previously scheduled motion to dismiss his prosecution.

It consists of challenges to the Foreign Agent — 18 USC 951 — charge against him that rely heavily on the Bijan Kian case, which is in a different circuit and very much in flux. Though as always disputes about this Foreign Agent application are of interest.

It includes a typical challenge based on FBI’s practice of writing up reports of interviews rather than recording them. This challenge might or might not include more valid complaints about the 302 than similar challenges that have failed in the past (we’ll find out at the end of February when the government files its response).

Moreover, the sole record the government chose to create are the handwritten notes of a single case agent that reflect little more than the agent’s subjective commingling of the questions and answers into shorthand assertions, wholly devoid of the actual questions asked and answers given.


Similarly, Count 6 alleges that Mr. Barrack “falsely stated [that he) had no role in facilitating communications between the President-Elect and officials from the United Arab Emirates[.]” Indictment ,r 105. The indictment alleges that this statement was false because Mr. Barrack supposedly “arrang[ed) one or more telephone calls between the President-Elect and Emirati Official 1 and Emirati Official 2” and because he “provid[ ed) contact information” for Emirati officials to the President-Elect’s assistant. As with Count 4, however, the record does not reflect whether the ambiguous term “facilitating communications” was used by the government in its question or instead whether those were words used by Mr. Barrack in his response.

But the bulk of this motion to dismiss consists of an insinuation that this prosecution should have been successfully obstructed by Donald Trump.

Barrack doesn’t say that outright. Instead, he raises the fact that he was charged two years after his interview. He says that over and over. He even asks for discovery as to why it happened that way.

After that June 2019 interview, Mr. Barrack heard nothing more from the prosecutors. They did not contact him or his counsel to express any concerns about the information he provided or to discuss potential charges or a pre-indictment presentation. Meanwhile, Mr. Barrack continued working as Executive Chairman of his company and in that role made dozens of trips overseas, including to the Middle East. He also continued to act as an informal advisor to the Administration on foreign and economic policy with no indication by the government that he was supposedly an undisclosed foreign agent or national security threat.

On July 20, 2021, after two years of silence, more than a dozen armed FBI agents burst into a Los Angeles office where Mr. Barrack was attending a business meeting and took him into custody. He was incarcerated in a California general population prison for four days until he was released under extremely harsh and virtually unprecedented bail conditions.

Third, the government waited two years long after memories of the precise language used during the interview would have faded to charge Mr. Barrack with multiple felony counts premised on allegedly false statements


The government appears to have taken few investigative steps following Mr. Barrack’s June 2019 interview, waiting for two years before bringing charges. This delay is even more inexplicable given that the government’s actions since Mr. Barrack’s interview do not reflect any apparent concern that he was a foreign agent or national security threat, even though he traveled overseas more than a dozen times and continued to have access to senior White House personnel and the President. The Due Process Clause protects defendants against such prejudicial, unjustified pre-indictment delay. See United States v. Lovasco, 431 U.S. 783, 789 (1977); United States v. Marion, 404 U.S. 307, 324 (1971); see also Fed. R. Crim. Proc. 48(b) (allowing dismissal of indictment for pre-indictment delay). To establish such a due process violation, a defendant must show both that he was prejudiced by the delay and that the government acted with an impermissible mens rea in delaying the indictment. Because both are present here, the indictment must be dismissed in full. Or, at the very least, the Court should allow discovery into the reasons for the government’s extended delay.


Finally, the government’s unjustified two-year delay in charging Mr. Barrack also warrants dismissal of the indictment. The government had all the evidence on which the indictment was based in 2019. The indictment pleads the conspiracy terminated in April 2018, and the alleged false statements occurred in June 2019. Why the government waited more than two years, and until after a change in administration, is a question only it can answer, but it should answer it especially given the paramount First Amendment interests at stake. Had the government brought this case when its investigation was complete in 2019, recollections regarding Mr. Barrack’s June 2019 interview would have been fresh and the harm from the government’s failure to make a contemporaneous record might have been mitigated. The lengthy delay has also prejudiced Mr. Barrack’s ability to identify, preserve, and secure documentary evidence and obtain evidence from witnesses whose memories have faded. The government has provided no explanation for its delay, and the specter that the government intentionally delayed bringing this case for political reasons or tactical advantage hangs heavily over this case. Because Mr. Barrack has been deprived of a fair opportunity to defend himself, the indictment should be dismissed. [my emphasis]

Barrack’s suggestion — probably correct — that any charges under Donald Trump wouldn’t have survived Billy Barr’s meddling and Donald Trump’s pardons are all the more curious given his suggestion that the White House and intelligence agencies deleted records involving his actions.

To that point, the government has not produced, or perhaps not even searched for, internal memoranda or communications in government offices such as the White House or the intelligence agencies that were in the possession of key individuals in the campaign and Administration with whom Mr. Barrack was in communication about the matters alleged in the indictment. Moreover, it is doubtful that texts and emails once in the possession of such witnesses can now be reasonably obtained, especially with the change of administration.

While an intriguing insinuation, this seems to say more about the way that Jared Kushner and Trump were protected by this investigation than anything else; Barrack does not, here, make a claim that this should have been turned over in discovery. (I suspect the charges were scoped the way they were to implicate Trump and Kushner as little as possible, which I noted here.)

Unless the 302 problems are unique — and nothing here suggests they are — the way in which DOJ backstopped this with the false statements charges will make this indictment less susceptible to challenge on the face of the law.

But before it gets there, this challenge will be a test of DOJ’s ability to wait out an obstructionist President and Attorney General to prosecute an alleged criminal.

29 replies
  1. joel fisher says:

    I think the defendant should explore this delay, perhaps even explore whether TFG had anything to do with it. However, I don’t think the defendant gets to complain if the higher-ups were obstructing justice on their behalf. Even so, perhaps the D of J will allow extensive discovery on this. There’s gonna be lots more to this story.

    • earthworm says:

      “However, I don’t think the defendant gets to complain if the higher-ups were obstructing justice on their behalf.”

      The higher-ups — and Barrack’s own — behalf, it appears as i read speculatively.
      Wouldn’t this make the motion to dismiss almost frivolous if not facetious?

  2. Rita says:

    Ms. Wheeler cuts through to the chase again.

    If Mr. Barrack succeeds, maybe Matt Gaetz can use that defense as well. “I’ve been crimin’ so long, I didn’t know I was crimin’.” Poor Tom Barrack didn’t have enough money to hire lawyers to advise him on what he needed to do to engage in his business legally. He had to wait for the DOJ to indict him.

    • ernesto1581 says:

      Forbes, 8/1/21: “A generous estimate of his fortune, Forbes figures, would be $600 million, given his claim that his company stock was the majority of his wealth in 2018. He’s likely worth even less than that.” So $250 million for bail is a real ouch.
      Something of a comedown from July 2019 when Barrack tried “… to buy nuclear reactor maker Westinghouse…using Saudi and Emirati money” (FT) for Ukrainian purchase and operation, five days after TFG’s “perfect” phone call to Zelensky.

      (rayne/bmaz: possible to do a quick primer on turning long links into underlined “click here” phrases? thanks.

      also: waiting for lively discussion of the Chiefs’s boneheaded call at the end of the first half the other day.)

      • Alan Charbonneau says:

        There’s something about nuclear power and the Trump administration.
        Flynn’s “Middle East Marshall Plan” comes to mind. I wonder if the contacts made by Flynn et. al. in trying to get their Marshall Plan project going, were used by Barrack? I.e. perhaps he wanted to use the groundwork laid for Flynn’s plan and repurpose that into a new plan for Ukraine.

        I’d be curious to know how connected he and Flynn are and if the Westinghouse purchase was related to work Flynn and others had already completed.

        • ernesto1581 says:

          quick down-and-dirty timeline, Barrack, Kushner, Nukes & Ukraine.

          -March 2006, Toshiba buys Westinghouse Electric for $5.4 billion.
          -March 2011, Fukushima meltdown of Westinghouse reactors
          -May 2016 — Barrack approaches Middle East princes for ‘feedback’ on a Trump energy speech, specifically related to ‘nuclear energy.’
          -Jan 2017, shortly after inauguration, Kushner meets with chair & other executives of Anbang Insurance to discuss possible purchase of 666 Fifth Ave., a $1.8 billion to family. Anbang declines, not wishing to become embroiled in US political intrigues.
          -March 2017, Westinghouse Electric declares bankruptcy.
          -4 Jan 2018, Toshiba begins sale of Westinghouse to ‘Canadian based’ Brookfield Assets for $4.6 billion USD [from FT: $1 bn equity, $3 bn long term debt]. Deal finalized August 2018.
          -3 Aug 2018, Brookfield buys 666 Fifth Ave for $1.1 billion, thereby saving Kushner’s ass, several days after wrapping up Westinghouse purchase.
          -Sept 2018, Westinghouse announces it may build several nuclear reactors in Ukraine.
          Nov 2018, Alexander Shavlakov (VP/Tech. Dir., Energoatom) mentions plans to expand production of components (heads and liners) for Westinghouse fuel cassettes at a plant based in southern Ukraine.
          -Jan 2109, Ukraine receives permission from Westinghouse to use nuclear fuel technology in plant construction.
          -25 July 2019 Trump’s phone call to Zelensky.
          -30 July 2019 Barrack ‘…tries to buy nuclear reactor maker Westinghouse…using Saudi and Emirati money’ (FT)

          [ok, ok. I’ll do my html homework. sheesh.]

        • djysrv says:

          The relationship between Michael Flynn, for the short time he was the National Security Adviser to President Trump, and Trump “friend” Tom Barrack relative to their nuclear energy plan for Saudi Arabia is covered in this NBC News report 02/19/2019 that is based on a collection of sources that may also have been covered this issue elsewhere.

          The plan to purchase Westinghouse may have developed in order to take it offshore since as a U.S. firm it could not do business with Saudi Arabia due to the fact that nation does not have a Section 123 Agreement under the Atomic Energy Act for the peaceful use of nuclear energy. No U.S. firm can do nuclear energy related business with a country that does not have such an agreement. For their part Saudi Arabia resisted U.S. calls for it to follow the lead of the UAE, which does have a 123 agreement in which it renounced plans to enrich uranium and/or reprocess spent nuclear fuel.

          The NBC report correctly points out that if, as alleged, Flynn transferred sensitive nuclear energy information to Saudi Arabia, he may have put himself in legal hot water. It isn’t clear what the information was, but a conjecture is that it could have been technical information on the Westinghouse AP1000 PWR which is similar to the two units being built at the Vogle site in Georgia and the four units like it completed by Westinghouse for China.

          “The House Oversight Committee has formally opened an investigation into the matter, releasing an interim staff report that adds new details to previous public accounts of how Flynn sought to push through the nuclear proposal on behalf of a group he had once advised. Tom Barrack, a prominent Trump backer with business ties to the Middle East, also became involved in the project, the report says.”

          “Just days after Trump’s inauguration, backers of the project sent documents to Flynn for Trump to approve, including a draft Cabinet memo stating that the president had appointed Barrack as a special representative to implement the plan and directing agencies to support Barrack’s efforts, the report says.”

          & & &

          “The proposal, which involved enlisting the U.S. nuclear power industry to build nuclear plants across the Middle East, was backed by a group of retired generals who formed a firm called IP3. Flynn described himself in financial disclosure filings as an “advisor” to a subsidiary of IP3, IronBridge Group Inc., from June 2016 to December 2016 — at the same time he was serving as Trump’s national security adviser during the presidential campaign and the presidential transition, the report says.”

          Westinghouse emerged from bankruptcy in August 2018 after being purchased from Toshiba for $4.6 billion by Brookfield, a Canadian private equity firm.

          That company said at the time it was not interested in the business of building new reactors. It’s decision to buy the firm was to grow its cash flow for sales of nuclear fuels and maintenance of conventional reactors. As a U.S. firm it is prohibited from doing business with countries that don’t have 123 agreements. Note that at the time of the purchase, the sovereign wealth fund of Qatar was a major investor in Brookfield holding a 7% share.

          # # #

      • Spencer Dawkins says:


        “On July 20, 2021, after two years of silence, more than a dozen armed FBI agents burst into a Los Angeles office where Mr. Barrack was attending a business meeting and took him into custody. He was incarcerated in a California general population prison for four days until he was released under extremely harsh and virtually unprecedented bail conditions.”

        I believe Rachel Maddow talked about this when it happened, and what I remember thinking at the time is “when you have people with virtually unprecedented wealth who have been charged with a felony, you can’t be surprised when they face virtually unprecedented bail conditions”.

        I believe the point of cash bail is to give the person a reason to show back up (and collect his bail), isn’t it? What would it take to make going on the run painful to someone like Barrack? DoJ thought “$250 million sounds about right”.

        In addition Barrack’s virtually unprecedented wealth, according to CNN at the time, DoJ “noted that his co-defendant in the case, Rashid Sultan Rashid Al Malik Alshahhi, fled the United States three days after he was interviewed by the FBI in 2018. Alshahhi hasn’t returned to the United States, and he remains at large. The court filings also alleged that Barrack had connections to senior leaders in both the UAE and Saudi Arabia — both countries without extradition treaties with the United States.”

    • Leoghann says:

      My question, too. And are they allowed to have a stenographer with them. I know an “informal interview” doesn’t allow attorneys, and doesn’t involve being under oath.

  3. Rugger9 says:

    Good question, harpie, because I certainly would like my own record (or recording) of what was said.

    I think this is more dangerous to Individual-1 and Bill Barr than both realize, because if I read this correctly, Barrack is claiming that it was routine WH policy to destroy inconvenient evidence. If Barrack has the documentation as well, then it would seem to me that a conspiracy is established to violate the Presidential Records Act and good old fashioned influence peddling corruption among other crimes that have been prosecuted on lesser mortals. WhetheR It is Clearly Obvious something else is in play would be determined.

    • Ginevra diBenci says:

      Rugger9, your mention of it being “routine WH policy to destroy” documents in violation of the records act dovetails so perfectly with Barrack’s implicit argument that I wonder if he was instrumental in leaking that practice to WaPo. He certainly had the opportunity to witness (and potentially benefit from) it close up.

  4. Alan Charbonneau says:

    “But before it gets there, this challenge will be a test of DOJ’s ability to wait out an obstructionist President and Attorney General to prosecute an alleged criminal.”

    I am still wondering why they didn’t wait until after Inauguration Day to charge Steve Bannon. Maybe the fact he was stealing from Trump donors made them think a pardon was out of the question?

    • Tones says:

      I admit I thought the same thing but my cynical mind circled back to “Trump would be furious Bannon was ripping off his supporters” -Unless- he was getting a share of the cash…then he pardons Bannon, no questions asked.

  5. Spencer Dawkins says:

    Just echoing ernesto1581 here:

    “(rayne/bmaz: possible to do a quick primer on turning long links into underlined “click here” phrases? thanks.”

    Me, too. I’d also love to know
    – how to show quotations in my comments (just using quote marks around material I paste doesn’t seem especially notable),
    – how to show words in bold or italics, and
    – for extra credit, how to be notified when someone replies to one of my comments. I’ll check back on this one, but that’s not reliable for me in general. I saw, but that’s for new posts, not for comments (I think).


    • John Paul Jones says:

      Try this:
      carrat bracket; followed by a href=”LINK”; close bracket; then your tag phrase; followed by /a in brackets. Anything you turn on (a href) you have to at some point turn off (/a). The backslash turns it off. So for boldface, same trick, b in carrat brackets to turn it on, and /b in same brackets to turn it off. I can’t make this work for italics, but it does for bold.

      I learned this using Flickr, but it seems to work generally.

    • earlofhuntingdon says:

      For those asking about how to write “basic html commands” (a useful search term), Rayne has covered this before. See, for example,

      Scroll down to sections on how to create links to citations, quotations, formatting, etc. A standard format places commands between carrots at the beginning and end of the relevant text.

      • Rayne says:

        Thanks. I’m not going to offer HTML lesssons here. In the age of the internet this is like asking a blogger to offer remedial composition in order to participate.

    • matt fischer says:

      In the examples below replace the brackets with angle brackets for intended results:
      [a href=””] emptywheel [/a] yields emptywheel.
      [em] italics [/em] yields italics.
      [strong] bold [/strong] yields bold .
      [strike] strike [/strike] yields strike .
      [blockquote] blockquote [/blockquote] yields



      • Leoghann says:

        Thanks. I’ve known how to use href cues forever, and moderated a couple of forums, back during the days. But what used to work there doesn’t work here, except that putting things in angle brackets makes them disappear.

  6. Troutwaxer says:

    What a mare’s nest! I’m referring to the nuclear issues, of course. If you’re a Middle-Eastern potentate propped up with oil money, what do you (or your children) do when the oil runs out? Switching to nuclear power, and having the ability to sell nuclear plants installation/servicing/maintenance for export is a no-brainer, (you get a nuclear deterrent as a nice bonus, but it’s not really about the bombs. except that Saudi religious fanatics should under no circumstances be allowed to have nukes.)

    Seen against that background, prosecuting Barrack makes a certain kind of sense, with the man being torn between two different visions for the post-oil world. (And no matter how rich or powerful I was, I wouldn’t touch “buy a nuclear company with Arab oil money” with a ten-foot pole.) Barrack is lucky he’s only facing one fairly-minor felony charge!

    I’m sorry if this strays a little too far from the legal issues, but I think the nuclear background is essential for understanding what’s going on here (as long as we don’t go down any rabbit holes.) Was Barrack really so stupid he couldn’t see the national security/commercial security angles?

  7. Wajim says:

    “[Mr. Barrack] was incarcerated in a California general population prison for four days until he was released under extremely harsh and virtually unprecedented bail conditions.”

    Oh, the butt-hurt of the rich . . .

Comments are closed.